Uttarakhand High Court
Babli And Another vs State Of Uttarakhand And Another on 10 July, 2026
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application U/s 482 No. 978 of 2024
10TH July, 2026
Babli and Another --Applicants
Versus
State of Uttarakhand and Another --Respondents
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Presence:-
Mr. Prem Kaushal, learned counsel for the applicants
Mr. Pankaj Joshi, learned A.G.A. for the State.
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Hon'ble Siddhartha Sah, J.
By means of the present Criminal Misc.
Application under Section 482 Cr.P.C., the applicants
have sought quashing of the impugned order dated
06.05.2024, passed by learned Additional Sessions
Judge, Khatima, District Udham Singh Nagar in
Sessions Trial No.65 of 2012, arising out of FIR No.254
of 2011, ‘State vs. Prabhunath & Others under Sections
304, 302 & 201 of IPC, Police Station Khatima, District
Udham Singh Nagar.
2. It has been informed that the respondent
no.2 has since died.
3. Brief facts of the case necessary for the
adjudication of the present Criminal Misc. Application
under Section 482 Cr.P.C. are as follows :-
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(i) First Information Report was lodged by the
respondent no.2, which was registered as FIR
No.254 of 2011 for the offence punishable under
Sections 147, 148, 302, 201 & 34 of IPC, at Police
Station Khatima, District Udham Singh Nagar.
Though the applicants were named in the FIR but
the charge-sheet was submitted only against three
accused persons, namely Prabhunath, Punnalal
and Panchanand. It was only during the trial, on
an application moved under Section 319 Cr.P.C.,
which was allowed by the trial court vide order
dated 05.07.2014 that the applicants and one
Jyoti were summoned as accused under Section
319 Cr.P.C.. After summoning the applicants
under Section 319 Cr.P.C., the applicants
challenged said the summoning order dated
05.07.2014 before this Court by way of filing a
Criminal Revision, but the same was dismissed
vide order dated 02.11.2017. However, the
applicants were directed to appear before the trial
court and move the bail application and the trial
court was directed to decide the same as
expeditiously as possible. Thereafter, the
applicants surrendered before the trial court and
moved the bail application and the same was
allowed on the same day.
(ii) It is further the case of the applicants that
since the applicants were juvenile on the date of
incident, therefore, an application dated
01.05.2024 was moved by the applicants along
with Jyoti, praying to declare them as juvenile and
by separating their files, the same be sent before
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Juvenile Justice Board for trial. In the said
application, it has been stated that the on date of
incident i.e 23.11.2011, date of birth of the
accused Jyoti D/o Dilip being 14.06.1997 she was
14 years, 5 months & 11 days old; date of birth of
Babli D/o Videshi being 05.07.1995 she was 16
years 4 months 18 days old and date of birth of
Pappu S/o Pardeshi being 14.02.1995 he was 16
years 9 months 11 days old and all the three
accused were minor on the date of incident.
(iii) The learned Additional Sessions Judge,
Khatima, District Udham Singh Nagar vide
impugned order dated 06.05.2024 rejected the
application on behalf of present applicants,
namely Babli Kumari and Pappu. However, co-
accused Jyoti has been declared juvenile and her
file has been ordered to be separated and sent to
the Juvenile Justice Board.
4. Assailing the aforesaid order dated
06.05.2024, the learned counsel for the applicants
would submit that on the date of incident, the
applicants were 16 years 4 months 18 days and 16
years 09 months 11 days of age respectively. Therefore,
the impugned order refusing them to declare juvenile is
apparently erroneous and is against the provisions of
Juvenile Justice (Care and Protection of Children) Act,
2015 (hereinafter referred to as Juvenile Justice Act,
2015). He further submitted that the application of the
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applicants has been rejected on the sole ground that
they were more than 16 years of age on the date of
incident, this cannot be a sustainable ground to reject
the application and the impugned order is against the
letter and spirit of the Juvenile Justice Act.
5. Referring to the impugned order dated
06.05.2024, learned counsel for the applicants would
submit that even from a bare reading of the order dated
06.05.2024, it is clear that the learned Additional
Sessions Judge, Khatima did not dispute the respective
ages of the applicants to be between 16 & 18 and as per
the provision of Section 2 (13) of the Juvenile Justice
Act, 2015, the applicants would be ‘Child in Conflict
with Law’. Section 2 (13) of Act, 2015 is being extracted
hereunder for ready reference.
“2(13) “child in conflict with law” means a child
who is alleged or found to have committed an
offence and who has not completed eighteen years
of age on the date of commission of such offence”.
6. To buttress his submissions, learned counsel
for the applicants would rely upon the judgment of the
Hon’ble Supreme Court in the case of Thirumoorthy
vs. State represented by the Inspector of Police,
reported in (2024) 12 SCC 307, and in particular has
drawn the attention of the Court to para nos. 29,30 and
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40 of the said judgment, which are reproduced
hereunder for ready reference.
“29. The provisions contained in Section
9(1) stipulate that when a Magistrate not
empowered to exercise the power of the Board under
the Act is of the opinion that the person alleged to
have committed the offence and brought before him
is a child, he shall, without any delay, record such
opinion and forward the child immediately along
with the record of such proceedings to the Board
having jurisdiction.
30. Section 9(2) and Section 9(3) cast a burden that
where the Court itself is of the opinion that the
person was a child on the date of commission of the
offence, it shall conduct an inquiry so as to
determine the age of such person and upon finding
that the person alleged to have committed the
offence was a child on date of commission of such
offence, forward such person to the Board for
passing appropriate orders and sentence, if any,
passed by the Court shall be deemed to have no
effect.
40. Thus, on the face of the record, the
proceedings undertaken by the Sessions Court in
conducting trial of the CICL, convicting and
sentencing him as above are in gross violation of
the mandate of the Act and thus, the entire
proceedings stand vitiated.”
7. Thus, placing reliance upon the provisions of
the Act, 2015, learned counsel for the applicants would
submit that the said Act is the beneficial legislation and
has to be read in favour of the Child in Conflict with
law, whenever the plea of juvenility is raised at any
stage.
8. In reply to the submissions of the learned
counsel for the applicants, Mr. Pankaj Joshi, learned
AGA would very fairly submit that in the present case,
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the relevant provisions of the Act. 2015 would be
Section 9(2) & (3). Section 9 of the Act, 2015 is
extracted hereunder for ready reference.
“9. Procedure to be followed by a Magistrate
who has not been empowered under this Act :-
(1) When a Magistrate, not empowered to exercise
the powers of the Board under this Act is of the
opinion that the person alleged to have committed
the offence and brought before him is a child, he
shall, without any delay, record such opinion and
forward the child immediately along with the
record of such proceedings to the Board having
jurisdiction.
(2) In case a person alleged to have committed an
offence claims before a court other than a Board,
that the person is a child or was a child on the
date of commission of the offence, or if the court
itself is of the opinion that the person was a child
on the date of commission of the offence, the said
court shall make an inquiry, take such evidence
as may be necessary (but not an affidavit) to
determine the age of such person, and shall record
a finding on the matter, stating the age of the
person as nearly as may be:
Provided that such a claim may be raised
before any court and it shall be recognised at any
stage, even after final disposal of the case, and
such a claim shall be determined in accordance
with the provisions contained in this Act and the
rules made thereunder even if the person has6
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ceased to be a child on or before the date of
commencement of this Act.
(3) If the court finds that a person has committed
an offence and was a child on the date of
commission of such offence, it shall forward the
child to the Board for passing appropriate orders
and the sentence, if any, passed by the court shall
be deemed to have no effect.
(4) In case a person under this section is required
to be kept in protective custody, while the person’s
claim of being a child is being inquired into, such
person may be placed, in the intervening period in
a place of safety.
9. The learned AGA, has also referred the
provision of Section 19 of Act, 2015, which is
abstracted hereunder for ready reference.
“19. Powers of Children’s Court :- (1) After the
receipt of preliminary assessment from the Board
under section 15, the Children´s Court may decide
that– (i) there is a need for trial of the child as an
adult as per the provisions of the Code of Criminal
Procedure, 1973 and pass appropriate orders after
trial subject to the provisions of this section and
section 21, considering the special needs of the
child, the tenets of fair trial and maintaining a
child friendly atmosphere; (ii) there is no need for
trial of the child as an adult and may conduct an
inquiry as a Board and pass appropriate orders in
accordance with the provisions of section 18.
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(2) The Children’s Court shall ensure that the final
order, with regard to a child in conflict with law,
shall include an individual care plan for the
rehabilitation of child, including follow up by the
probation officer or the District Child Protection
Unit or a social worker.
(3) The Children’s Court shall ensure that the
child who is found to be in conflict with law is sent
to a place of safety till he attains the age of twenty-
one years and thereafter, the person shall be
transferred to a jail: Provided that the reformative
services including educational services, skill
development, alternative therapy such as
counselling, behaviour modification therapy, and
psychiatric support shall be provided to the child
during the period of his stay in the place of safety.
(4) The Children’s Court shall ensure that there is
a periodic follow up report every year by the
probation officer or the District Child Protection
Unit or a social worker, as required, to evaluate
the progress of the child in the place of safety and
to ensure that there is no ill-treatment to the child
in any form.
(5) The reports under sub-section (4) shall be
forwarded to the Children´s Court for record and
follow up, as may be required.”
10. Placing reliance upon the aforesaid
provisions of Section 9 (3) as well as Section 19 of the
said Act, 2025, the learned AGA very fairly submits,
that if a court finds that a person has committed an
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offence and was a child in conflict with law on the date
of commission of such offence, it shall forward the child
in conflict with law to the Board for passing appropriate
orders and after the receipt of preliminary assessment
of the court under Section 15, the Children’s Court may
decide that there is need for trial of child as adult as
per the provisions of the Cr.P.C. and pass appropriate
orders.
11. Learned AGA would further submit that the
provisions of Section 15 and Section 18(3) of the Act,
2015 relating to preliminary assessment, were enforced
with effect from 15th of January, 2016 and will have no
applicability to the offence which is allegedly committed
on 23.11.2011. There is no corresponding section of
section 15 and 18(3) in the former Act of 2000, i.e. the
Juvenile Justice (Care and Protection of Children) Act,
2000 and that there is no provision for retrospective
applicability of the Juvenile Justice Act, 2015.
12. After hearing the learned counsel for the
parties at length and after going through the record, it
is clear from a bare perusal of the impugned order
dated 06.05.2024 that the learned Additional Sessions
Judge, Khatima, though having noted that all the three
applicants have raised the plea of juvenility and had
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sought reference to the Board were found to be below
18 years of age, however, and only since the applicants
were found to be above 16 years of age, the learned
Additional Sessions Judge declined to separate their file
and refer the same to the Juvenile Justice Board.
13. On one hand, the learned counsel for the
applicants would submit that in view of the provisions
of Section 2(13) of the Act, 2015, the applicants were
child in conflict with law, and thus, as per provisions of
Section 9(2) and (3) read with Section 19, the trial court
was under an obligation to refer them to the Juvenile
Justice Board after separating their files, particularly in
view of the judgment of the Hon’ble Supreme Court in
the case of Thirumoorthy (Supra) and particularly
paragraph numbers 30 and 31 thereof.
14. On the other hand, the learned AGA, though
not strictly opposing the said submissions on behalf of
the applicants per se, but his only objection would be
that the Juvenile Justice Act, 2015 does not have a
retrospective effect and therefore, it is doubtful whether
the applicants could have been declared juvenile.
15. After hearing the rival submissions of learned
counsel for the parties and after going through the
record, it is clear that provisions of Section 9(3) of the
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Juvenile Justice Act, 2015 make it clear that if the
court finds that a person has committed an offence and
was a child in conflict with law on the date of
commission of such offence, it shall forward the child to
the Board for passing appropriate orders.
16. Thus, once the learned Additional Sessions
Judge had recorded the finding that the applicants
were child in conflict with law, i.e. they were above 16
years and below 18 years of age, it could not have
declined to refer them to the Juvenile Justice Board.
17. So far as the plea of the learned AGA is
concerned that the Act does not have a retrospective
effect. It is clear from the impugned order dated
06.05.2024 that the learned Additional Sessions Judge
has himself relied upon the provisions of Section 15(1)
of the Juvenile Justice Act, 2015 and the provisions of
Section 18(1) of the Juvenile Justice Act, 2015 and has
recorded the reasons that the offences committed by
the applicants and Kumari Jyoti, were serious offences
and since the applicants were above 16 years of age,
they had the ability to understand the nature and
consequences of the offence and the circumstances in
which they allegedly committed the offence, and
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therefore, it would be as per law to try them as adult by
the said court.
18. The provisions of Section 9(3) of the Juvenile
Justice Act, 2015 are mandatory in nature, and there is
a mandate that once the court finds that a person has
committed an offence and was a child in conflict with
law on the date of commission of such offence, it shall
forward such a child to the Board for passing
appropriate orders. The Court finds that pari-materia
provision is there under provisions of Section 7-A(2) of
the Juvenile Justice (Care and Protection of Children)
Act, 2000 containing similar mandate.
19. Hence, the said provision would oust the
jurisdiction of the learned Additional Sessions Judge
before whom the trial was pending, and the order dated
06.05.2024 was thus absolutely without jurisdiction
after making assessment of the applicants as juvenile
but declining to separate the file of the applicants from
the others and refer it to the Juvenile Justice Board.
20. Hence, this Court finds substance in the
submissions made on behalf of the learned counsel for
the applicants, and in view of the aforesaid facts and
circumstances and the position of law as enunciated by
the Hon’ble Supreme Court in the case of
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Thirumoorthy (Supra) and the provisions of Section
9(3) read with Section 2(13) of the Juvenile Justice Act,
2015, the impugned order is unsustainable and
deserves to be quashed.
21. Thus, the present Criminal Miscellaneous
Application under Section 482 Cr.P.C. is allowed. The
impugned order dated 06.05.2024 passed by the
learned Additional Sessions Judge, Khatima, District
Udham Singh Nagar in Sessions Trial No.65 of 2012,
arising out FIR No.254 of 2011, ‘State vs. Prabhunath
& Others under Sections 304, 302 & 201 of IPC, Police
Station Khatima, District Udham Singh Nagar is hereby
quashed, and the file of the applicants shall also be
separated and sent to the Juvenile Justice Board for
further proceedings.
(Siddhartha Sah, J.)
10.07.2026
JKJ/
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